The Divorce Coach

'Divorce Lawyers prefer not to go to Court'

More good news (in our view) from divorce lawyers as they are increasingly recognising that the adversarial divorce system we have in the UK is exacerbating the adverse impact of family breakdown and needs to radically change. A huge shift is underway to move divorce from the ‘adversarial ‘norm’ and a recent survey showed that nine out of ten divorce lawyers supported a move to leave divorce courts out of divorce - they prefer not to go to court.

According to insidedivorce.com recent research carried out by Grant Thornton found that nine out of ten divorce lawyers would prefer to see greater emphasis on a less confrontational and more collaborative approach where couples work together with their legal advisers - and in some cases external specialists - to reach an agreement without the need to enter a court room.

Andrew Woolley, of Woolley and Co. commented: "We fully support this approach. Taking a case into a court room leads to spiralling costs for clients, drags the process out and does not guarantee an agreeable outcome for everyone anyway."

"It can also be traumatic for all parties, especially if there are any children involved."

"Sometimes there is an assumption from a client that to reach a fair financial settlement, or reach agreement over the children, they have to battle it out in court. TV and films could have a lot to answer for in that regard."

"Sitting down with their lawyer and stating what they reasonably would like, and keeping a civil relationship with their estranged spouse, so that they can come to an agreement without heading to court doesn't make good entertainment. But it will make the process much less traumatic and no less fair."

In our last newsletter we brought you news that senior family judges were making it clear that the system they have been working with for the last few decades is badly failing to help splitting families. Headlines like ‘High Court Judge warns family breakdown is as big a threat to national life as global warning' are an indication of how serious the problem is. Our clients are usually looking at ways to stay out of court, however the reality is that they are in court, or facing court. Why is this? I’m not a mathematician but surely if 9/10 divorce lawyers don’t want to go to court (according to the Grant Thornton survey above) and 9/10 The Divorce Coach clients don't want to go to court either, there should be less people destined for the divorce courts!

It's our view that they are normally in court because their partner won't engage with the process and sadly (for the client and usually their family too) those litigious partners will find a family lawyer who support them in ‘fighting it out' in court.

Will a future combination of divorce lawyers wishing to stay out of court and divorcing people wishing to stay out of court too reduce the amount of cases ultimately ending up in court? I suspect not - because starting litigation is often the only way of forcing the party who is dragging their heels to take action. Such are the delays in central London courts (and I’ve been told by divorce lawyers that decisions have to be made early on to commence litigation because there is such a waiting list for hearings) that, whilst this may indeed galvanise some people into action, there are others who relish their ‘day in court’ and will use it to delay matters even further. Litigious divorce lawyers and their clients will know that the enforced delays and resultant financial and emotional costs can often mean the spouse who did not wish to go to court (who is usually the less financially secure partner) is brought to their knees and may well end up se ttling for less because they cannot afford (financially and emotionally) to fight for more.

If lawyers REALLY prefer to see greater emphasis on a less confrontational approach, how is this message being put out to divorcing people in practice and how powerful is that message? Here’s my tu’ppeny ha’penny worth:

* To start with, we need more surveys like this from Grant Thornton and more press releases to support the new shift in thinking. 
* We need more collaborative lawyers across the board, not just at the higher net worth end. 
* We need divorce lawyers to recognise that they should be playing a small part in the divorce process – the legal part. And they need to tell their clients that seeking help for the non-legal aspects will save them time AND money. 
* We need the government to invest in educating people about the alternatives to litigation. It never ceases to amaze me that most people in the divorce process think family mediation is couples counselling. 
* We need to recognise why people 'fight' divorce (largely for emotional reasons) and help them to overcome these feelings so that they are better able to get through the process. 
* We need to learn from the Americans and other nationalities about celebrating divorce and talking about the process instead of sweeping it under the carpet. How much easier it would be if we could say 'We got together; it didn't work out; now we are ending it amicably so we can move on.'

And if we took more trouble to learn about ourselves and why we are going into long-term relationships and make sure our values are aligned with our partners before committing, we could make our relationships last for life.
  
An increasing number of divorce professionals including divorce lawyers believe that going to court and litigation in divorce should be a last resort. It will only be a last resort if all family lawyers and the government properly support people in taking responsibility for their part in the break-up; for educating them about how to dismantle the former partnership in a responsible way and being able to see that creating a new life is not impossible post-divorce. Crucially, separating and divorcing people have to want to utilise that support.
 

“High Court Judge warns family breakdown is as big a threat to national life as global warning.”

Family legal process in chaos -it's official

Far more members of the public are likely to be involved in the family justice system than any other part of the national court or justice system, according to Mr Justice Coleridge at the Resolution conference on 5 April 2008. These are mostly ordinary and frequently tax paying people who now find themselves caught up in family breakdown.

“…they turn to the system (which is paid for by their taxes) to find it overstretched to the point of collapse and acutely and chronically underfunded at all points. Delays are rife in every part of the system through lack of resources. And delay, as we all know, exacerbates all the problems and compounds the stress. And, just to make matter worse, the present substantive law of divorce, and financial division and the law relating to the property of unmarried couples (other than gay ones) administered by the courts is out of date, hardly fit for purpose and crying out for a thorough overhaul.'

Sobering words indeed but confirmation from top family lawyers that the family legal process is in chaos with the blame being firmly attached to the governments of the last 30 years. People who have experienced family breakdown - and those who have been close to people who have - won't be surprised. But what can they do to help themselves in an increasingly chaotic family justice system?

Mr Justice Coleridge proposed putting family breakdown and family justice at the top of the political agenda and deploying 'very significant resources of manpower and money' and making the reforms necessary to bring divorce law into the modern world.

What can the 150K couples per year who are experiencing family breakdown do to help themselves through such a difficult time, not to mention those who aren't married but have many of the same issues to confront and overcome? My advice would be:

* to read and learn as much as you can about what you’re about to go through so that you take control;
* speak to specialist relationship, child and divorce experts about all the issues which arise, don’t just expect your family lawyer to sort out all your problems;
* learn what your family lawyer and the family lega lprocess can and can’t do;
* be financially aware and realistic.

Read more about the High Court Judge Mr Justice Coleridge’s speech by clicking the link to Resolution's media page here.

"Our methods are out of date, expensive, uncivilised and inefficient."

First some amazing revelations from family legal professionals, which were pretty much obscured by the other gloomy headlines of jittery stock markets, falling house prices and the impact of the credit crunch.

"Our methods are out of date, expensive, uncivilised and inefficient."

These were the words of a family lawyer on behalf of Resolution, James Stewart, quoted in the Observer last month just before the announcement that the McCartney Mills settlement was made public. He goes on: "With more than 300,000 people divorcing this year, costing £28,000 per couple, more and more people are attempting to represent themselves in the court room.

Despite huge changes in family life and social attitudes, there have been few changes to the law in the 33 years between Ringo Starr's divorce in 1975 and Paul McCartney's divorce now. Our methods are out of date, expensive, uncivilised and inefficient."

No surprises there then to the many thousands of people who have struggled through divorce in recent years. But these are words from family legal professionals, not normally known for being so outspoken.

Read more here in The Divorce Coach April divorce newsletter

'Present divorce law..hardly fit for purpose'

Keynote speech about the family legal process and family breakdown delivered by Mr Justice Coleridge at the Resolution conference on 5 April 2008

Far more members of the public are likely to be involved in the family justice system than any other part of the national court or justice system according to Mr Justice Coleridge. These are mostly ordinary and frequently tax paying people who now find themselves caught up in family breakdown.

‘…they turn to the system (which is paid for by their taxes) to find it overstretched to the point of collapse and acutely and chronically underfunded at all points. Delays are rife in every part of the system through lack of resources. And delay, as we all know, exacerbates all the problems and compounds the stress. And, just to make matter worse, the present substantive law of divorce, and financial division and the law relating to the property of unmarried couples (other than gay ones) administered by the courts is out of date, hardly fit for purpose and crying out for a thorough overhaul.’

Sobering words indeed but confirmation from top lawyers that the family legal process is in chaos with the blame being firmly attached to the governments of the last 30 years. People who have experienced family breakdown – and those who have been close to people who have – won’t be surprised. But what can they do to help themselves in an increasingly chaotic family justice system?

Mr Justice Coleridge proposed putting family breakdown and family justice at the top of the political agenda and deploying ‘very significant resources of manpower and money’ and making the reforms necessary to bring divorce law into the modern world. Read the speech by clicking the link to Resolution's media page here.

For those who simply can’t wait until the government brings divorce law into the modern world, and want and need more immediate action to alleviate their own, their friend's or familie's pain, or even their client’s very pressing relationship breakdown problems, they could participate in the One-Stop Divorce Workshop where they will be encouraged to stay out of court if they can; to work out what their joint needs are and those of their children and to save precious family assets and preserve emotional well-being.

‘Do I actually need a family lawyer?’

I don’t actually get asked this question very often, because most people initially approach separation and divorce thinking they must have a lawyer. But over the past couple of months I’ve come across clients who have appointed lawyers and probably, in my view, not needed to. That’s not to say they don’t need a family lawyer and legal advice – it’s almost always in their best interests to get legal advice as to their rights and their situation especially where there are joint children and assets. But many people think they have to appoint a lawyer and are not aware of the alternatives - and sadly, often aren't made aware of them by their family lawyers.

Conversely, I’ve spoken to people who have deliberately avoided seeking legal advice, but whom I felt needed to. When they did, they agreed it could have cost them dear not to have done!

In many circumstances a couple of hours of early legal advice, an enquiring mind, a (relatively) co-operative spouse and mutual agreement to work it out themselves – perhaps with a child or financial mediator – could save them £000s. They will almost certainly need a lawyer to check the agreement over at the end and often whilst the agreement is being drawn up - this is taking legal advice when necessary, and is not the same as appointing a solicitor.

Appointing the wrong lawyer - especially if combined with ill-founded expectations of what they and the law can do for them - is a recipe for an alarming escalation of costs, especially if their spouse and their solicitor respond in the same manner.

The costs speak for themselves - a solution found through mediation is likely to be less than £1000, (plus any legal advice) whilst I hear of litigious divorces costing up to £100K. Next week, if the cost of McCartney Mills settlement is made public, this figure will look very, very cheap.

I’ve written before about the conciliation vs. litigation question and since then I've tried to establish the average cost of divorce, only to come up with:

* How long is a piece of string?
* Divorce in London can be double the cost of outside London. 

This is not very helpful. In my view, divorcing people badly need to see the divorce process move from the adversarial ‘norm’ (though there will always be those who will only reach 'agreement' when they get a court order from the judge at the end of a long court process) to encouraging and promoting conflict resolution methods. Having said that, the less adversarial lawyers are moving away from fuelling the 'the only winners are the lawyers' type comments and giving divorcing people more of what they need, i.e.

* help in working out their own solutions;
* encouraging them to look at what they need to survive and how their personal situation might achieve that.

I would also add to that list, help with:

* dealing with their fears, their losses, their guilt;
* encouraging more effective communication;
* learning to let go;
* embracing change;
* building confidence in their own abilities.

I'm convinced that their legal training doesn't equip them to do this - and that this support needs to come from family and financial mediators and from coaches, especially divorce and parent coaches, life coaches and counsellors.

I’ll be writing more about this in the months to come as we launch an innovative range of new services with other professionals (and a new website) designed to help people understand the divorce process, what they can expect from it and how to best survive it eg.

• New branches of The One-Stop Divorce Workshop;
• Services around preparing emotionally and practically for court, including McKenzie Friend support for litigants in person;
• Emotional and practical divorce help from the family divorce consultants at www.itsmydivorce.co.uk

Who Needs a McKenzie Friend? (Apart from Heather Mills)

Answer: Litigants in Person representing themselves in Court

People representing themselves in court as a litigant in person have the right to take a supporter into court with them. That person is called a "McKenzie Friend." Heather Mills reportedly has one in her trial last week.

Who can be a McKenzie Friend?

Anybody - e.g. a personal friend, a solicitor, a work colleague, and a relative - anybody the litigant in person feels will support them.

There is no need for them to be a lawyer. A lawyer can advise on the law, but the litigant in person needs to focus on the facts of the case - it is the facts they will be presenting and arguing.

Why should they need a McKenzie Friend?

As one of the parties in a case, they are, by definition, emotionally involved, and have more than a financial stake in the outcome. Emotions can prevent them thinking clearly, listening carefully and understanding what is being said.

Their McKenzie Friend can keep them focussed on the facts, help them present their case in the most effective way, and help them feel less alone.

What can a McKenzie Friend do for me?

• Keep you focussed on the facts which are strictly relevant to your case.
• Sit beside you in court.
• Take notes.
• Suggest questions for you to ask.
• Keep you focussed on your case and what you want to say.
• Be another pair of ears to listen for you.
• Help you stay less emotional and give factual responses.
• Help you to ask questions simply and clearly so they are understandable.

Kirsten Gronning

The Divorce Coach

McKenzie Friend Support

Who’d be a Litigant in Person?

And when might a McKenzie Friend make a difference?

Heather Mills representing herself at court this week has raised many questions about why you would do this (she says she can’t afford a legal team and is reported to owe the lawyers she sacked £1.5m +) and whether it is a foolish move.

Whether she had a choice or not in the matter, or not, it’s certainly opened the whole debate about litigants in person representing themselves in court and whether it’s good for them and the legal process generally. The Guardian on Monday in the article ‘The Art of Self-Defence’ Clare Dyer reported extensively into the pros and cons of litigants choosing to fight their own corner, stating that more and more people are being forced to represent themselves, particularly in family cases.

The article states: ‘Research shows that those who handle their own litigation make more mistakes than lawyers do – and more serous mistakes – and that the outcomes of their cases are generally worse than for those who are legally represented.’

As a litigant in person in my own divorce a few years ago, this was certainly my experience:

• That it is a very, very daunting experience, one of the most traumatic experiences in my life.
• It is essential to stay calm and focused.
• I recognized it was in my best interests to take legal advice about what to ask for in court, even if I didn’t have representation in court.
• I also sought legal advice about legal procedure when needed.
• That judges differ hugely in how much they help litigants in person.
• That court staff vary tremendously with the quality of the help and support they give (Central London Divorce courts) but most try hard if asked nicely!
• I had no idea a ‘McKenzie Friend’ might help.
• The Judge in his summing up commented that in his view he didn’t think either party was disadvantaged by representing themselves.

Would I recommend others do the same? – not at all, but, like me, some people will have no choice. If they can’t afford legal representation in court then they will have to, unless they settle out of court, though this will often be a fudge because they can't afford to 'fight' for more.

I’m delighted to be putting my experience to good use by helping others in similar circumstances – where they have to represent themselves in court and can’t afford legal representation. If you are interested in reading more about this support and about McKenzie friends, then click the link here.

It’s not everyday I'm invited onto the Richard and Judy show

Is Heather Mills barmy?

Not my words, but the phrase used by Richard on the Richard and Judy show on Tuesday where I had been invited to participate as someone who had represented myself in court divorce proceedings.

Sincere thanks to Jackie Walker the Divorce Coach in Scotland who was behind this. What did I learn?

• That the fact that I came across as seemingly confident (according to feedback, it was live and I didn’t see it) was entirely down to the warm welcome and encouragement I received from the R&J team and, especially, the well known family lawyer Vanessa Lloyd Platt, the other guest on with me really put me at my ease. What a media pro she is as well as promoting some thinking outside the box approaches to divorce.

• That having next to no warning (well 3 hours, but one of those hours I was with a client and ended up borrowing her jacket to attempt a ‘professional’ image) was a blessing – no time to dwell on it.

• That people really need help to prepare emotionally for court. Next week the whole litigant in person scenario may be brought very much into the media spotlight if Miss Mills really is representing herself. I hope that the reasons for being a litigant in person will be highlighted by the press e.g. typically running out of money for legal representation and having an ex who nevertheless insists on going through to final hearing. If this is your scenario then  there is really no choice but to be in court (unless of course you settle out of court, though this will often be a fudge because you can’t afford to ‘fight’ for more.)

There are many people in the position of being dragged through the courts by (ex) partners (and their lawyers) to reach agreement. Being unable to pay for representation, they have to represent themselves in court, including at the final financial hearing.

I am not saying this is necessarily the case with the McCartney Mills case, but I do know of two people in this position and more headed this way. They need all the support they can get and if media reporting next week were to highlight the difficulties of such people caught in this real catch 22 and also reinforces what an utter waste of family resources it is, I really welcome it.

Collaborative Law - 'acceptance' at last

Family judges campaign to take the bitterness and costs out of divorce

You can read the article by Frances Gibb in the Times yesterday here

Cynics might accuse the so-called 'magic circle' of family lawyers of being frightened of change - lining their own pockets even - and only embracing collaborative law now that their reputations are being tarnished by the accusations that they are 'wedded to an adversarial approach which can all too often damage families.'

In my view the main reason collaborative family law is not 'an easy option' (to quote the family lawyer at Grahame Stowe Bateson) is that the divorcing couple are unable to leave their emotions outside the meeting room and their fears, their guilt, their sadness will make it hard to be reasonable and consider compromise. That's hardly surprising - they are making some of the most difficult decisions at one of the most stressful times of their lives. But there are people who can help keep the emotional side level and divorce coaches will play an increasingly important role here as Resolution (formerly the Solicitor's Family Law Association) allows them in - and I am delighted to feel real progress here.

My admiration is with the smaller family lawyers dealing with the lower net worth cases who I know professionally and who embraced collaborative law at an early stage and worked tirelessly to make it main stream. A client who went through the process recently was amazed and delighted at how quickly she was able to settle once the process had got underway and she had the tools to deal with her emotions.